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J.C. v. Superior Court CA5

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J.C. v. Superior Court CA5
By
05:04:2018

Filed 4/6/18 J.C. v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

J.C.,

Petitioner,

v.

THE SUPERIOR COURT OF FRESNO COUNTY,

Respondent;

FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES,

Real Party in Interest.

F076896

(Super. Ct. Nos. 07CEJ300149-4, 07CEJ300149-6)


OPINION
THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Gary Green, Commissioner.
J.C., in pro. per., for Petitioner.
No appearance for Respondent.
Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Real Party in Interest.
-ooOoo-
Petitioner J.C. (mother), in propria persona, seeks an extraordinary writ from the juvenile court’s order issued at a post-permanent plan review hearing (Welf. & Inst. Code, § 366.3) setting a section 366.26 hearing as to her daughters, now 13-year-old N.L. and 10-year-old H.L. In her petition, mother asks this court to vacate the section 366.26 hearing and direct the juvenile court to order visitation or return the children to her custody. We conclude mother’s petition fails to comport with the procedural requirements of California Rules of Court, rule 8.452 and dismiss the petition.
PROCEDURAL AND FACTUAL BACKGROUND
Dependency proceedings were initiated in June 2007 when the Fresno County Department of Social Services (department) removed then two-year-old N.L. along with four of her siblings from mother’s custody because of mother’s substance abuse and unstable lifestyle. The juvenile court adjudged the children dependents under section 300. In August 2007, the Oglala Sioux Tribe requested to intervene pursuant to the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.). The court granted the request and transferred the case to the tribe. The tribe made the maternal grandmother the children’s Indian Custodian/Legal Guardian and placed them with her.
In November 2009, the department took then four-year-old N.L., two-year-old H.L. (collectively, the children) and two other siblings into protective custody because the maternal grandmother was unable to care for them. She was wheelchair bound and suffering from debilitating medical conditions. In addition, she allowed mother to live in her home, knowing mother was regularly using methamphetamine. She also allowed her son to live with her and the children even though he was a registered sex offender and accused of sexually molesting mother’s teenage daughter the year before. Mother was aware the grandmother was struggling to care for the children and never sought substance abuse treatment even though it was available. The department filed a dependency petition on the children’s behalf, which the juvenile court sustained. The tribe supported the children’s removal.
In August 2010, the juvenile court exercised its dependency jurisdiction over the children and ordered mother to participate in reunification services. In May 2011, the court returned the children to her with family maintenance services.
In September 2011, mother informed the department she was no longer able or willing to care for the children because she wanted to focus on graduating from school. She told a social worker she was drinking beer, was not drug testing, did not have a sponsor and was not attending Alcoholics/Narcotics Anonymous meetings. She was “done” taking care of the children and wanted to live her life without them at that time. The department removed the children and their then five-year-old brother O.L. from mother’s custody and filed a supplemental petition (§ 387), alleging family maintenance had been ineffective in protecting the children.
The juvenile court sustained the supplemental petition at a dispositional hearing in January 2012 and set a section 366.26 hearing. The department placed the children on an extended visit with their maternal grandmother who was willing to assume a guardianship over them. However, the grandmother died in July 2012. After an unsuccessful attempt to place the children with another relative, the department placed them in foster care.
In June 2013, at the section 366.26 hearing, the juvenile court found the children were difficult to place for adoption and there was no one willing to adopt them or assume legal guardianship of them. The court selected a permanent plan living arrangement as their permanent plan and set a post-permanent plan review hearing (review hearing). At subsequent review hearings over the ensuing four years, the court maintained the children in their selected permanent plan. During that time, in September 2017, the court granted a modification petition (§ 388) filed by the department and suspended mother’s visits because she consistently cancelled them, causing the children emotional upset.
In January 2018, the department recommended the juvenile court set a section 366.26 hearing at the upcoming review hearing. The children wanted to be adopted by their foster parents, who they called “mom” and “dad,” and the foster parents wanted to adopt them. Mother continued to reside in the area but was unwilling to work with the department and the tribal representative. She wanted to reunify with the children and did not understand why visitation was suspended. She had an active warrant for two misdemeanor charges of possession of a controlled substance filed in August 2016.
The juvenile court conducted the review hearing on January 10, 2018. Mother did not personally appear and her attorney submitted on the department’s recommendation. The court found mother’s progress in alleviating the need for foster care had been “none,” set a section 366.26 hearing as to the children for April 25, 2018, and a review hearing as to O.L. for June 2018.
DISCUSSION
Mother does not identify a specific legal error committed by the juvenile court in setting a section 366.26 hearing. Rather, she makes a series of general assertions. She claims, for example, the department removed the children from their grandmother—not her—and she was not living there at the time. She also claims the department “trumped up” a story that she had a long history of substance abuse in order to justify the children’s removal when she was actually trying to finish college and make a better life for them. She disagrees with the juvenile court’s characterization of her progress and its finding it would be detrimental to return the children to her custody. Mother does not specify any dates or page citations to support her assertions.
As a general proposition, a juvenile court’s rulings are presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Thus, absent a showing of error, this court will not disturb them. A parent seeking review of the juvenile court’s orders from the setting hearing must, as mother did here, file an extraordinary writ petition in the reviewing court. The purpose of writ proceedings is to allow the reviewing court to review the juvenile court’s orders to identify any errors before the section 366.26 hearing occurs. Rule 8.452 requires the petitioner to identify the error(s) she believes the juvenile court made. It also requires the petitioner to support each error with argument, citation to legal authority, and citation to the appellate record. (Rule 8.452(b).)
Real party in interest urges this court to dismiss mother’s petition as facially inadequate because it does not comport with rule 8.452. We do have that discretion and will exercise it in this case. By the time a case reaches the post-permanency stage of review, key decisions such as the removal and placement of the children have already been made. A parent who fails to raise critical issues below cannot raise them for the first time in the appellate court. (See In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.) Since mother did not seek review of the court’s removal and placement orders on appeal, she forfeited her right to challenge them in her petition.
Further, even if we were to review the juvenile court’s order setting the section 366.26 hearing, we would find no error. When the court orders a child into foster care at a section 366.26 hearing, it must review the child’s permanent plan every six months to determine whether the plan is still appropriate. (§§ 366.26, subd. (b)(7); 366.3, subd. (d).) If it appears the child is suitable for adoption, the court must set a section 366.26 hearing. (§ 366.3, subd. (h)(1).)
Here, by the review hearing in January 2018, the children’s foster parents had decided to adopt them. Consequently, the juvenile court had no choice but to set a section 366.26 hearing to determine whether adoption was a more appropriate permanent plan. Since mother does not contend the court erred in setting the section 366.26 hearing or challenge any of its other rulings from the January 10, 2018, review hearing, her petition is facially inadequate for review.
DISPOSITION
The petition for extraordinary writ is dismissed. This court’s opinion is final forthwith as to this court pursuant to California Rules of Court, rule 8.490(b)(2)(A).





Description Petitioner J.C. (mother), in propria persona, seeks an extraordinary writ from the juvenile court’s order issued at a post-permanent plan review hearing (Welf. & Inst. Code, § 366.3) setting a section 366.26 hearing as to her daughters, now 13-year-old N.L. and 10-year-old H.L. In her petition, mother asks this court to vacate the section 366.26 hearing and direct the juvenile court to order visitation or return the children to her custody. We conclude mother’s petition fails to comport with the procedural requirements of California Rules of Court, rule 8.452 and dismiss the petition.
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